FIRE announces its Speech Code of the Month for November 2010: Moorpark College, a public community college in California.
Moorpark’s Student Code of Conduct prohibits any “profanity, vulgarity, or other offensive conduct.” As a public institution, Moorpark is prohibited from infringing on its students’ First Amendment rights, but this policy bans a great deal of constitutionally protected speech and expression.
Profanity and vulgarity, however offensive they may be to members of the campus community, are protected speech. In upholding the right of a Vietnam War protester to be in a county courthouse wearing a jacket emblazoned with the words “Fuck the Draft,” the U.S. Supreme Court famously wrote that “one man’s vulgarity is another’s lyric.” Cohen v. California, 403 U.S. 15, 25 (1971). In Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973), the Supreme Court also held that “the mere dissemination of ideas-no matter how offensive to good taste-on a state university campus may not be shut off in the name alone of ‘conventions of decency.'”
As tasteless as profanity and vulgarity may seem, such expression has long been a part of our culture, high and low alike. How could anyone discuss or quote Shakespeare—or Mark Twain, or Norman Mailer, or any R-rated film—without either violating this policy or willfully ignoring the actual words being studied?
Moreover, students at public universities are adults entitled to the same First Amendment rights they have in society at large. This is perhaps nowhere more true than at community colleges, which typically enroll a lot of older, working adults in addition to students just out of high school. For example, Isaac Rosenbloom, the Hinds Community College student punished for profanity in a recent FIRE case, is a 29-year-old married father of two.
Besides the ban on “profanity” and “vulgarity,” Moorpark’s prohibition of “other offensive conduct” is hopelessly vague. The policy forces students to guess at whether or not their speech might be considered “offensive”—and many students will likely decide to play it safe and keep their mouths shut altogether. This kind of chilling effect may be exactly what Moorpark had in mind, but it violates the First Amendment. Further, the policy contains no requirement that the “offensive conduct” be objectively, rather than subjectively, offensive. As a result, the entire student body must conform their expression to the delicate sensibilities of the most easily offended student on campus, lest they risk punishment for engaging in “offensive” speech. Obviously, this is an impermissible outcome at a public institution like Moorpark, which is a government entity funded by taxpayers and, as a result, cannot simply decide to suspend the First Amendment on campus.
For these reasons, Moorpark College is our November 2010 Speech Code of the Month. If you believe that your college’s or university’s policy should be a Speech Code of the Month, please e-mail firstname.lastname@example.org with a link to the policy and a brief description of why you think attention should be drawn to this code. If you are a current college student or faculty member interested in free speech, consider joining FIRE’s Campus Freedom Network, which consists of college faculty members and students dedicated to advancing individual liberties on their campuses. You also can add FIRE’s Speech Code of the Month Widget to your blog or website and help shed some much-needed sunlight on these repressive policies.